Application State ex rel. Dunklin County v. Blakemore. IV. The treasurer did not deposit the funds separately. He mingled them all in depositing them. The court instructed, in effect, that if Blakemore was indebted to the county and paid it a sum less than the total due and made no application of the of Payment. payment to particular funds, the county had the right to apply the payment as it deemed best, and the bringing of this suit upon the bond in question "is evidence which will authorize you to find there was an application of the payment to his indebtedness, if any, to all funds other than those covered by the bond sued on." It is urged (1) a record of the county court is essential to show application of the payment; (2) it is not shown the county court ordered this suit brought, and (3) the filing of suit does not tend to prove an application of the payment. In case Blakemore failed to direct the application of the fund, the county had the right to do so. [State ex rel. v. Smith, 26 Mo. l. c. 231, 233; Henry County v. Salmon, 201 Mo. 166, 167.] Appellants went through the trial without raising any question whether this action was ordered by the county court. What they assumed throughout the trial, we must assume here. The bringing of the action for the whole deficiency on the bond involved would have bound the county, as an application of payment, in any other proceeding. [Haynes v. Waite, 14 Cal. 446, and cases cited.] It was substantial evidence of the county's intent to make the application to the funds mentioned in the instruction. [Starrett v. Barber, 20 Me. 1. c. 461.] There is no question. of "shifting responsibilities" by the application made. The bond was executed in contemplation of every applicable principle of law, the law of the application of payments as well as any other. V. The court instructed, in substance, that if Blakemore failed to pay over a balance he owed, and if it 275 Mo.-45 State ex rel. Dunklin County v. Blakemore. was found he mingled the several funds so they lost their identity and it became impossible to tell which fund, if any, was short, "then defendants are estopped to deny that such shortage belonged to the funds covered by the bond sued on," etc. Estoppel. It is contended (1) estoppel was not pleaded, and (2) was not proved. There was ample evidence of the facts predicated in the instruction. There was no objection to the evidence. Though not pleaded, estoppel was' available. There was no opportunity to plead it and it was not the basis of the action. [Long v. Coal & Iron Co., 233 Mo. 1. c. 738.] Blakemore testified he mingled the funds and "If there was any shortage it was impossible for me to tell where it was;" i. e. in what funds. Ordinarily, whatever estops the principal, estops the sureties. Blakemore was in no position to assert the shortage was in the school funds. He had brought about a condition which rendered it impossible to determine where it was. To permit him to produce this condition and then defeat a suit against him on the ground that respondent could not prove something he had rendered impossible of proof, would be to permit him to profit by his own wrong. Such a defense is not permissible. Public policy forbids recognition of a defense which would make it possible for every county treasurer, by merely mingling funds, to defeat all liability on his bond. The instruction is not open to the objection made. VI. Evidence of Blakemore's good character was inadmissible. His character was not attacked in such sense, if in any, as to render such evidence competent. [Bank v. Richmond, 235 Mo. 1. c. 542, and cases cited.] Good VII. Certain evidence was offered for a specified purpose. It was rejected. Appellants now contend it. was competent for other purposes and it was error to exclude it. Having made their offer and secured a ruling on specific grounds, appellants cannot now con State ex rel. Dunklin County v. Blakemore. vict the court of error by assigning reasons not given when the offer was made. [Fearey v. O'Neill, 149 Mo. 1. c. 473.] VIII. Other questions are raised, but are disposed of by the conclusions reached in preceding paragraphs. Affirmed. All of the judges concur; Bond, J., in result. INDEX. ACCORD AND SATISFACTION. 1. Part Payment: Receipt in Full: Consideration: Doubt as to Amount 2. : ·: Consideration: Receipt Not Necessary. To make a ACCOUNTING. 1. Foreign Corporation: Supervision by Domestic Courts. A court 2. Pleading. Pleadings for an accounting are liberally construed, 3. 4. Ib. -: Profit on Company Stock. An allegation in the petition : False Entry on Books. A charge by a stockholder in (709) |